Detailed Answer
Short answer: Under Utah law, a will that cannot be located after the testator’s death can still be admitted to probate, but the court will carefully examine whether the will was revoked. If the testator intentionally destroyed the original will, that destruction generally revokes the will. If the original is merely lost or destroyed without the testator’s intent to revoke it, interested parties can ask the probate court to admit a copy or other proof of the will’s terms. The court typically requires strong evidence—often called “clear and convincing” evidence—to establish both the will’s execution and that the testator did not revoke it.
How Utah law treats destruction or loss of a will
Utah follows the common rules found in the Uniform Probate Code about revocation by physical act and proof of lost or destroyed wills. Two basic concepts control outcomes:
- Revocation by physical act: If the testator intentionally destroys (for example, tears, burns, or otherwise obliterates) the will with the intent to revoke it, that act revokes the will.
- Presumption of revocation when the original is missing: When the decedent had the original will in their possession and the original cannot be found after death, Utah law generally presumes the testator revoked the will. That presumption can be rebutted by competent evidence showing the will was not revoked or that the purported revocation was not by the testator’s intent.
For statutory guidance see Utah’s probate provisions covering revocation and proof of wills (for example, provisions addressing revocation by physical act and admission of lost wills): https://le.utah.gov/xcode/Title75/Chapter2/75-2-507.html and https://le.utah.gov/xcode/Title75/Chapter2/75-2-509.html.
What evidence the court will consider
If the original cannot be produced, the probate court will consider evidence such as:
- Testimony from the will’s attesting witnesses who can describe the will’s execution and contents.
- A copy of the will (typed copy, photocopy, electronic copy, or attorney’s draft). Many courts admit copies if other proof shows the original was valid and not revoked.
- Affidavits from the drafting attorney or custodian (for example, if the attorney kept a copy in the client file).
- Evidence showing the testator did not intend to revoke the will (communications, patterns of conduct, or testimony that the testator relied on that will).
- Evidence that someone else destroyed the original without the testator’s intent to revoke (for example, an accidental destruction or destruction by a third party).
Typical court process in Utah
- An interested person files a petition in the proper Utah probate court to admit the will to probate or to determine whether the then-existing will controls.
- The petitioner submits all available evidence: copies of the will, affidavits, witness testimony, and other documents.
- The court evaluates whether the petitioner proved (usually by clear and convincing evidence) that the original will was executed properly and not revoked by the testator.
- If the court is satisfied, it may admit a copy into probate and treat the copy as the decedent’s will. If the court finds the will was revoked or the evidence insufficient, it will refuse admission, and the estate will be handled under any earlier valid will or intestacy rules.
Examples (hypothetical)
Example 1 — Lost will but strong proof: Jane dies after moving. Her original will is missing. Her attorney has a signed photocopy, and two attesting witnesses testify that Jane signed the will and never told them she revoked it. The probate court can admit the photocopy if the evidence shows the original was valid and not revoked.
Example 2 — Will burned with intent: Bob tears up his will in anger and says he revokes it; later he dies. The intentional destruction by Bob will most likely revoke the will, and a later copy would not be admitted.
Example 3 — Destruction by another person without intent: Sarah’s will was accidentally destroyed in a house fire started by a guest. If evidence shows Sarah did not intend to revoke the will, the court may admit a copy or other proof of the will’s contents.
Practical consequences
If a court admits a copy of a lost or destroyed will, the estate distributes according to the copy’s terms. If a copy is not admitted and no earlier valid will exists, the estate will be distributed according to Utah intestacy rules.
Key Utah statutory references
Relevant provisions in Utah’s probate statutes address revocation by physical act and the admission of lost or destroyed wills. See Utah statutes on revocation and proof of wills: https://le.utah.gov/xcode/Title75/Chapter2/75-2-507.html and https://le.utah.gov/xcode/Title75/Chapter2/75-2-509.html. For general provisions on wills, see the Utah probate code chapter on wills: https://le.utah.gov/xcode/Title75/Chapter2/75-2.html.
When to get an attorney: If a will is missing, family members, beneficiaries, executors, and potential heirs should consult an estate/probate attorney promptly. Disputes over lost wills often require court petitions and careful evidence-gathering. An attorney can help prepare affidavits, locate witnesses, and present the strongest possible record to the court.
Disclaimer: This article explains general principles of Utah law but is not legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a licensed Utah probate attorney.
Helpful Hints
- Immediately look for any original documents, safe-deposit boxes, attorney files, or digital copies.
- Gather witnesses early: locate and record contact details for attesting witnesses and the drafting attorney.
- Collect any drafts, photocopies, emails, or notes that describe the will’s terms or the testator’s wishes.
- If you suspect intentional revocation, collect evidence of the testator’s statements or actions indicating intent.
- If someone else destroyed the will, document how that happened (police/fire reports or witness statements) to show lack of intent by the testator.
- Act quickly. Probate rules often set short deadlines for filing petitions and notifying interested persons.
- Consider mediation or negotiation before litigation; many will disputes settle if parties share copies and testimony early.